2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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w . v i l l a no v a . e du/thir dc ir c uit_2011/152NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

__________ No. 10

- 2765

__________ SEEDS OF PEACE COLLECTIVE; THREE RIVERS

CLIMATE CONVERGENCE

v. CITY OF PITTSBURGH; L UKE RAVENSTAHL, Mayor of Pittsburgh; MICHAEL HUSS, Director of Public Safety; NATHAN HARPER, Chief of the Pittsburgh Bureau of Police; WILLIAM E. BOTCHER, Assistant Chief of the Pittsburgh Bureau of Police; MICHAEL T. RADLEY, Assistant Director of Pittsbu rgh City Parks; OFFICER KEVIN SELLERS (Badge No. 3602); OFFICER ERIC KURVACH (Badge No. 3480); OFFICERS DOE 1

- 100; MICHAEL T. RADLEY, OFFICER KEVIN SELLERS,

OFFICER ERICH KURVACH, Appellants.

On Appeal from the United States District Court for the Western District of Pennsylvania (D. C. No. 2

- 09

- cv - 0 1275) District Judge: Honorable Gary L. Lancaster
Submitted under Third Circuit LAR 34.1(a)

on March 1 8 , 2011 Before: BARRY, CHAGARES, and ROTH, Circuit Judges

(Opinion filed : November 29, 2011 )2 O P I N I O N

ROTH , Circuit Judge : I. Introduction Pittsburgh Assistant City Parks Director Michael Radley and Pittsburgh Police Officers Eric Kurvach and Kevin Sellers appeal the denial of their motion to dismiss claims by Three Rivers Climate Convergence (Three Rivers) under 42 U.S.C. § 1983 for violation of its First and Fourth Amendment rights . Three Rivers ‟ complaint alleged that Radley deliberately obstructed its efforts to ob tain permits to use Pittsburgh Cit y parks for protests of an International Coal Conference and G

- 20 Summit taking place in Pittsburgh, and that he was involved in the seizure of its materials by C ity officials. 1 Radley contends that these claims should have been dismissed because Three Ri vers failed to adequately allege his involvement in conduct violating the First and Fourth Amendments.
II. Background On December 11, 2009, Three Rivers and Seeds of Peace Collective (Seeds of Peace) filed an amended complaint , naming as de fendants the Ci ty of Pittsburgh, Radley, and several other C ity officials and police officers. T he c omplaint alleges , inter alia , that Three Rivers sought to mobilize people with similar views on climate and environmental

1 Three Rivers has conceded that it has not adequately alleged claims against Office r s Kurvach and Sellers and that these claims should be dismissed. Accordingly, we focus on Three Rivers‟ claims against Radley.3

concerns to protest the International Coal Confe rence and G

- 20 Summit taking place in Pittsburgh during the week of September 20, 2 009. Three Rivers sought to use two parks in Pittsburgh, Point State Pa rk and later Schenley Park, for demonstrations and as a “Convergence space” which would “provide a te mporary, 24

- hour

- a - day, education

based, sustainability

- camp community with associated support infrastructure for attendees and demonstrators between September 20

- 25.” According to Three Rivers, the defendants obstructed and hindered its demonstration eff orts in several ways. We consider only those allegations relating to Radley, Pittsburgh‟s Assistant City Parks
Director. Point State Park Permit. Three Rivers applied to use Point State Park several times, but “City officials” denied these applications f or a variety of reasons

. The o fficials first claimed that the C ity police and the Secret Service would be using the entire park as a staging area and later claimed that they had never received Three Rivers ‟ permit application

. The C ity police later decid ed that they only needed half of the park but Three Rivers was not informed of this decision and City officials continued to insist that
t he entire park was unavailable

. Despite this insistence, C ity officials decided to hold in the park a “Free Speech Fe stival” featuring Al Gore and other prominent speakers on the evening before the G

- 20 Summit would begin. When Three Rivers modified its permit
reques t to accommodate the festival, the City refused to issue the permit on the grounds that the City needed t o use the park for two footraces scheduled for the week before and the w eek after the week of the G

- 20 S ummit. Three Rivers and other groups then sued the City, C ity officials, and federal agencies responsible for the security of the G

- 204

Summit , alleging that the denial of a permit violated their First Amendment rights and seeking an injunction. S ee Codepink Pittsburgh Women for Peace v. U.S. Secret Serv

. , 09

- 1235 (W.D. Pa

. Sept. 17, 2009 ). Radley and other witness es for the City testified at a hearing on the preliminary injunction and insisted that Three Rivers could not use the park. The District Court granted the preliminary injunction in part and required the City to permit Three Rivers to use the park for a demonstration during one day of the G

- 20 Summit. Seizure of Materials. Because Three Rivers‟ demonstrators could not camp in the park overnight, it request ed permission to store its tent , tables, chairs, and educational materials overnight in the park. Radley gave Three Rivers permission to s tore these items overnight in the park, stating that the City did not “plan to remove your vehicle or overnight tent, ” but refused Three Rivers‟ request to leave two people overnight to protect its materials because this would constitute overnight camping. In reliance on Radley‟s statements, Three Rivers left its materials in the park but , by the following day, the items were gone. A City spokesperson denied that the police had taken Three Rivers‟ property, telling a reporter, “It was Public Works.” Desp ite numerous calls to the City, Three Rivers has still not been able to recover its property or obtain compensation. 2

2 Three Rivers also alleges that City officials (1) obstructed its demonstration efforts in Schenley Park by falsely insisting

– both privately to Three Rivers and in testimony in the Codepink lawsuit

– that the City had a policy against overnight camping in the p ark; (2) delayed issuance of a permit to use Schenley Park for a multi

- day event; and (3) hindered Three Rivers‟ access to Schenley Park on Thursday, September 24 , despite prior assurances that it would not do so

. None of these allegations mentions Radley

.5

Litigation. After the Coal Conference and G

- 20 Summit ended, Three Rivers and Seeds of Peace initiated this action against the City , nami ng as defendants Radle y, Sellers, and Kurvach, as well as the City of Pittsburgh, its Mayor ( Luke Ravenstahl), Director of Public Safety ( Michael Huss), Police Chief ( Nathan Harper), Assistant Police Chief ( William Botcher), and unnamed Officers Doe 1

- 100

. The defendants moved for partial dismissal of the c omplaint under Fed. R. Civ. P. 12(b)(6) , asserting qualified immunity and arguing that the personal involvement of several officials had not been adequately pleaded. The District Court agreed and dismis sed all claims against Ravenstahl, Huss, Harper, and Botcher but only some of the claims against Radley, Kurvach and Sellers. The District Court permitted Three Rivers to proceed with its First and Fourth Amendment claims against these defendants . Radley , Kurvach and Sellers appealed the District Court‟s order.
III. Jurisdiction and Standard of Review Because appellants moved to dismiss on the basis of qualified immunity, the District Court‟s order partially denying the motion is a “collateral order” th at is treated as final for purposes of 28 U.S.C. § 1291. See Ashcroft v. Iqbal , 129 S. Ct. 1937, 1946 (2009). We review de novo the denial of Radley‟s motion to dismiss to determine whether Three Rivers‟ complaint “ contain [s] sufficient factua l matter, a ccepted as true, to

„ state a claim to relief that is plausible on its face.‟” Id. at 1949

. IV. Discussion Qualified immunity is not merely a defense to liability but an immunity from suit and thus is a proper basis for a motion to dismiss under Rule 12(b) (6). Thomas v.6

Independence Twp. , 463 F.3d 285, 291 ( 3d Cir. 2006)

. In this case, the dispositive question for qualified immunity purposes is whether Three Rivers has sufficiently alleged that Radley violated its constitutional rights. See Pearson v. Ca llahan , -- U.S.

-- , 129 S. Ct. 808, 818 ( 2009) . At a minimum, “„ [a] defendant in a civil rights action must have personal inv olvement in the alleged wrongs‟ to be liable. ” Sutton v. Rasheed , 323 F.3d 236, 250 ( 3d Cir. 2003) (quoting Rode v. Dellarciprett e , 845 F.2d 1195, 1207 (3d Cir. 1988)) . To recover against Radle y, Three Rivers was therefore required to allege facts showing that Radley “through [his] own individual actions, has violated the Consti tution.” Iqbal , 129 S. Ct. at 1948. Three Rivers‟ co mplaint makes only three allegations concerning Radley‟s conduct and each falls short of this requirement

. The complaint first alleges that : Beginning in June 2009, as a matter of policy and practice City of Pittsburgh officials, including Mayor Ravenstah l, Public Safety Director Huss, Police Chief Harper, Assistant Chief Bochter and Assistant Parks Director Ra dley, deliberately misled [Three Rivers] leaders about the availability of traditional public forums, failed to iss ue and deliver permits to [Three Rivers] after publicly claiming they had been approved, outright denied [T hree Rivers‟] permit applications for specious and discriminatory reasons, and directed employees and agents to engage in various forms of harassment and intimidation, including seiz ing suppli es that were essential to [Three Rivers‟] planned demonstrations. However, when the legal conclusions in this sentence are pared away, see Iqbal , 129 S. Ct. at 1950, we are left merely with allegations that Radley and a number of other
defendants “ failed to iss ue and deliver permits to [Three Rivers] after publicly claiming they had been approved, outright denied [Three Rivers‟] permit applications . . ..” Standing alone, this allegation is simply too vague to provide Radley “ fair notice” of the7

claims against him and “ t he grounds upon which [ they ] rest[].” 3 Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007)

. The c omplaint‟s second allegation concerning Radley is more specific: Radley was one of several City witnesses who testified at the Cod epink preliminary injunction hearing and “insisted that the City could not allow [Three Rivers] to use Point State Park . . ..” But Three Rivers does not allege that this testimony was false or misleading, and we fail to see how Radley‟s presumably truthf ul testimony at a hearing could violate Three Rivers‟ constitutional rights. Three Rivers argues that we can infer that Radley was the person most directly involved in the decision not to issue them a permit

– and therefore liable for withholding the perm it

– because the City had him testify at the hearing. Even if Radley were the only City witne ss who testified at the hearing this inference would be a stretch, but the c omplaint alleges that Radley was merely one of several City witnesses, completely unde rmining the inference

. Radley‟s role in the permit decision should have been alleged in the complaint, rather than left to inference

. 4
See Iqbal , 129 S. Ct. at 19 50

.

3 Similarly, we reject Three Rivers‟ suggestion that we construe the generic references to “the City” or “City officials” throughout the complaint as including Radley. The c omplaint does not define these terms and thus does not provide Radley “ fair not ice” of what he is alleged to have done to violate Three Rivers‟ constitutional rights. See Twombly , 550 U.S. at 561 . Additionally, we do not consider factual allegations made in Three Rivers ‟ brief but not pleaded in the c omplaint. See Kost v. Kozakiew icz, 1 F.3d 176, 183 n.4 ( 3d Cir. 1993) ; Williams v. New Castle Cnty. , 970 F.2d 1260, 1266 n.4 ( 3d Cir. 1992)

.

4 Three Rivers‟ failure to allege Radley‟s decision

- making role is particularly puzzling because it obtained discovery from the City in the Codepi nk lawsuit and presumably had the opportunity to examine Radley at the preliminary injunction hearing in that case

. Although Three Rivers‟ complaint “incorporates facts from Codepink that8

Finally, the c omplaint alleges that Radley permitted Three Rivers to store its tent and other materials at Sc henley Park overnight, told it that t he City “did not plan to

remove [its] vehicle or overnight tent,” and refused Three Rivers‟ request to have two members guard the tent and materials overnight. Despite this statement, the City‟s Pu blic Works Department allegedly seized Three Rivers‟ tent and materials. These allegations suggest at most that Radley negligently failed to communicate with Public Works to

ensure that Three Rivers‟ property would not be seized. This does not rise to th e level of a Fourth Amendment violation. See , e.g. , Herring v. United States , 129 S. Ct. 695 , 703 (2009) (“ [P] olice negligence in obtaining a warrant [does not] rise to the level of a Fourth Amendment violation

. ”); Medina v. Cram , 252 F.3d 1124, 1132 ( 10t h Cir. 2001) (negligence leading to violent confrontation not sufficient for Fourth Amendment excessive force claim). 5 Three Rivers argues that, even if its pleadings are deficient, it should be given an opportunity to amend its complaint to allege in grea ter detail Radley‟s involvement in the conduct giving rise to its claims. See G r eat W. Mining & Mineral Co. v. Fox Rothschild
LLP , 615 F.3d 159, 174 (3d Cir. 2010) (“[I] f a complaint is subject to a Rule 12(b)(6) dismissal, a district court must permit a curative amendment unless such an amendment would be inequitable or futile

. ”). Because Three Rivers has not described in detail the are relevant” to its claims, no documents from the lawsuit are atta ched to the complaint or incorporated by reference.

5 Three Rivers contends that it has alleged a pattern of obstru ctive conduct by City officials which supports an inference that Radley‟s assurances were intentio nally misleading. Even if the c omplaint s ufficiently alleged such a pattern, Radley‟s personal involvement in obstructive conduct is not sufficiently alleged, s ee supra n.3, and thus does not support an inference that he intended to have Three Rivers‟ property seized.9

additional factual allegations it would make, we leave it to the District Court to consider on remand whether leave should be given to amend the c omplaint pursuant to Fed. R. Civ. P. 15(a).
V. Conclusion Three Rivers concedes that its claims against Sellers and Kurvach should have been dismissed

. W e conclude that the complaint fails to state a claim against Radley. According ly, we will vacate the order of the District Court to the extent that it denied appellants‟ partial motion to dismiss Three Rivers‟ claims against them and remand this case to the District Court with instructions to consider whether Three Rivers should be given leave to amend the c omplaint

.